193 F.3d 206 (3rd Cir.

1999)

UNITED STATES OF AMERICA,

v.
ROBERTO IMENEC A/K/A ALBERTO GIMENEZ
ROBERTO IMENEC, APPELLANT
No. 98-1912

U.S. Court of Appeals, Third Circuit

Argued June 17, 1999
Decided September 30, 1999

On Appeal From the United States District Court For the Eastern District
of Pennsylvania (D.C. Crim. Action No. 92-cr-00584-1) District Judge:
Honorable Clarence C. NewcomerChristopher D. Warren (Argued) Saul,
Ewing, Remick & Saul 3800 Centre Square West Philadelphia, PA 19102,
for Appellant.
Shari E. Lewis (Argued) Assistant United States Attorney U.S. Attorney's
Office 615 Chestnut Street Philadelphia, PA 19106, for Appellee.
Before: Nygaard, Cowen, and Stapleton, Circuit Judges
OPINION OF THE COURT
Stapleton, Circuit Judge
Roberto Imenec was convicted of one count of conspiracy to distribute
cocaine base in violation of 21 U.S.C. 846. The United States District
Court for the Eastern District of Pennsylvania sentenced him to 151
months imprisonment, five years of supervised release, a $2000 fine, and a
$50 special assessment. Imenec asserts that the District Court erred when
it imposed a two point upward departure for obstruction of Justice,
pursuant to Section 3C1.1 of the Sentencing Guidelines. We will affirm
the sentence of the DISTRICT COURT.
I.
Imenec was arrested after selling crack cocaine to undercover
Philadelphia police officers on four separate occasions. He was charged

with state drug offenses and released on bail with an order to appear in
state court for a preliminary hearing on November 26, 1991. One day
before the scheduled preliminary hearing, the United States Attorney's
Office for the Eastern District of Pennsylvania secured a warrant for
Imenec's arrest on federal drug offenses based on the same events. Federal
authorities intended to arrest Imenec when he appeared at the state court
proceeding. Imenec did not appear at his preliminary hearing, however,
and subsequent attempts to locate him proved fruitless. In October, 1992,
a federal grand jury returned an indictment against Imenec.
A few years later, on May 31, 1995, Imenec was arrested in New York
under the alias, "Jose Estevez," and charged with conspiracy to distribute
cocaine. An automated fingerprint check revealed Imenec's identity, and
arrangements were made to have him brought to Pennsylvania to face the
charges set forth in the 1992 federal indictment. After challenging his
prosecution as untimely under the Sixth Amendment, Imenec agreed to
cooperate with authorities. He ultimately pled guilty to one count of
conspiracy to distribute cocaine, acknowledging that the conspiracy
involved 214.8 grams of crack cocaine.
On September 14, 1998, the District Court sentenced Imenec to 151
months imprisonment, five years of supervised release, a $2000 fine, and a
$50 special assessment. The District Court concluded that Imenec had
obstructed Justice when he failed to appear at the state court preliminary
hearing in 1991, and based on that finding, imposed a two point upward
enhancement, pursuant to Sentencing Guideline 3C1.1. The sole issue
raised in this appeal is whether the imposition of the upward enhancement
was based on an erroneous construction of 3C1.1.
II.
Because Imenec was sentenced in 1997, we must analyze his appeal under
the Guidelines as they existed at that time. The relevant version of 3C1.1
provides that "[i]f the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of Justice during the
investigation, prosecution, or sentencing of the instant offense, increase
the offense level by 2 levels." U.S.S.G. 3C1.1 (Nov. 1997).1 The
Application Notes offer us some guidance in determining what type of
conduct constitutes obstruction of Justice for the purposes of 3C1.1.
Two of the enumerated examples are of particular significance. Note
Three establishes that "willfully failing to appear, as ordered, for a judicial
proceeding" is an obstruction of Justice under 3C1.1, and Note Four
provides that "avoiding or fleeing from arrest" does not constitute

obstruction of Justice.

The District Court accepted the Government's position that Imenec's failure to
appear at his preliminary hearing in Pennsylvania state court in 1991 was a
willful failure to appear at a judicial proceeding, justifying the upward
departure pursuant to Application Note Three of 3C1.1. Imenec concedes that
he failed to appear at a state judicial proceeding, but he argues that, because it
was a state, rather than a federal, court, his failure to appear was outside the
ambit of 3C1.1. The only "effect" his action had upon federal proceedings, he
argues, was to avoid or delay his arrest, an action that Application Note Four of
3C1.1 clearly excludes. The District Court was unpersuaded by Imenec's
proposed construction of 3C1.1. We exercise plenary review over the District
Court's interpretation of the Sentencing Guidelines. See United States v.
Powell, 113 F.3d 464, 467 (3d Cir. 1997).
III.

The answer to whether a 3C1.1 obstruction of Justice enhancement is

appropriate in this case depends on whether "instant offense" is understood to
refer to the criminal conduct underlying the specific offense of conviction, as
the government contends, or is read to be limited to the specific offense of
conviction itself, as Imenec insists. Based on the text and purpose of 3C1.1,
we conclude that the Sentencing Commission's intent was to impose an
enhancement for any conduct that obstructs an investigation, prosecution or
sentencing proceeding that is based on the criminal conduct underlying the
specific statutory offense for which the defendant is being sentenced.

Section 3C1.1 imposes a sanction for conduct that obstructs an official criminal
investigation, even though the investigation has not yet matured into a
prosecution and, indeed, even though no thought has yet been given to what the
appropriate criminal charge might be. As a result, we believe it unlikely that the
Sentencing Commission intended to require a nexus between the specific
statutory offense and the obstructed investigation beyond a showing that the
conduct being investigated gave rise to the criminal charge ultimately decided
upon.

Moreover, we believe the intent reflected in the text of 3C1.1 is the one most
consistent with its purpose. As the Court of Appeals put it in United States v.
Emery, 991 F.2d 907 (1st Cir. 1993):

[T]he obstruction-of-Justice enhancement rests on the rationale that "a

[T]he obstruction-of-Justice enhancement rests on the rationale that "a

defendant who commits a crime and then... [makes] an unlawful attempt to
avoid responsibility is more threatening to society and less deserving of
leniency than a defendant who does not so defy" the criminal Justice process.

Id. at 912 (quoting United States v. Dunnigan, 507 U.S. 87, 97 (1993)). As the
Emery court went on to point out, the threat that the defendant poses and his or
her culpability with respect to the offense of conviction are not lessened by the
happenstance that the obstructive conduct occurred at a time when state, rather
than federal, authorities were conducting the investigation of the conduct
underlying the offense of conviction.

Because we interpret "the instant offense" in the manner suggested by the

government, we conclude that a 3C1.1 enhancement is appropriate where the
defendant has obstructed an investigation of the criminal conduct underlying
the offense of conviction, even where the investigation was being conducted by
state authorities at the time. Given that interpretation, we further conclude and
hold that a 3C1.1 enhancement is appropriate where the defendant has
obstructed a prosecution based on the same criminal conduct underlying the
offense of conviction even though that prosecution is going forward in a state
court.

Our holding is consistent with and supported by our existing circuit

jurisprudence. In United States v. Powell, 113 F.3d 464 (3d Cir. 1997), we
construed 3C1.1 as applying, not only to conduct obstructing the proceedings
against the defendant himself, but also to conduct obstructing a separate trial of
a co-defendant on a charge based on the same criminal conduct underlying the
defendant's offense of conviction. In Powell, the defendant had been convicted
of conspiracy to distribute cocaine with his brother. The defendant pled guilty
to the conspiracy, but then, in an effort to impede his brother's prosecution, he
testified falsely at his brother's trial. The District Court applied 3C1.1 and
imposed a two level enhancement on Powell. On appeal, Powell argued that
3C1.1 was inapposite, because his conduct did not obstruct the "instant
offense." We rejected that argument and held that 3C1.1 "applies where a
defendant attempts to obstruct Justice in a case closely related to his own...." Id.

While Powell involved two federal prosecutions, its holding is inconsistent with
an understanding that "prosecution" in 3C1.1 is limited to the prosecution that
produced the conviction for which the defendant is being sentenced. It is
consistent with the notion that 3C1.1 applies to conduct obstructing any
investigation, prosecution or sentencing proceeding based on the same criminal
conduct that underlies the offense for which the defendant is being sentenced.

Indeed, it seems to us that this case follows a fortiori from Powell, since
Imenec, in obstructing the state prosecution, was attempting, unlike Powell, to
avoid accountability for his own criminal conduct.
10

Cases from other Courts of Appeals also provide support for our holding. See
United States v. Smart, 41 F.3d 263, 265-66 (6th Cir. 1994) (per curiam)
(argument that failure to appear at state court proceeding was unrelated to the
"instant" case "is simply not tenable"); United States v. Adediran, 26 F.3d 61,
65 (8th Cir. 1994) ("this circuit does not prohibit obstruction enhancement in
federal prosecutions merely because state entities were involved"). In addition,
other Circuit Courts of Appeals have expansively interpreted 3C1.1 to require
enhancement for conduct obstructing state investigations, even when the
obstructive conduct occurred before federal charges were filed or a federal
investigation was even initiated. See United States v. Self, 132 F.3d 1039, 1042
(4th Cir. 1997) ("[s]section 3C1.1 draws no distinction between a federal
investigation and a state investigation"); United States v. Emery, 991 F.2d 907,
911-12 (1st Cir. 1993) ("so long as some official investigation is underway at
the time of the obstructive conduct, the absence of a federal investigation is not
an absolute bar to the imposition of a section 3C1.1 enhancement"); United
States v. Lato, 934 F.2d 1080, 1083 (9th Cir. 1991) (obstruction of a state
investigation properly considered for purposes of a 3C1.1 enhancement).
IV.

11

In Conclusion, we hold that 3C1.1 requires a two level enhancement when a

defendant fails to appear at a judicial proceeding, state or federal, relating to the
conduct underlying the federal criminal charge. Accordingly, the judgment of
the District Court will be affirmed.

NOTE:
1

In 1998, Section 3C1.1 was modified; it now provides: If (A) the defendant
willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of Justice during the course of the investigation, prosecution or
sentencing of the instant offense of conviction, and (B) the obstructive conduct
related to (i) the defendant's offense of conviction and any related conduct; or
(ii) a closely related offense, increase the offense level by 2 levels. U.S.S.G.
3C1.1 (Nov. 1998). The application notes indicate that the amendment was
intended to address the issue raised in this appeal --i.e., whether the term
"instant offense" applies to obstructions that occur in cases closely related to the

defendant's case or only to those obstructions specifically related to the offense

for which the defendant has been convicted. "The amendment, which adopts
the majority view, instructs that the obstruction must relate either to the
defendant's offense of conviction (including any relevant conduct) or to a
closely related case." U.S.S.G. App. C at 583. It, thus, appears that Imenec's
conduct would merit enhancement under the 1998 Guidelines.